Wednesday, 3 December 2014

Sometimes I come across a case that makes me shake my head.I read this case the other day that was in another realm; the barrister for the mother accused a Family Court judge or court officials of altering the transcript. Even worse - it appears that after the mother acknowledged that the transcript was accurate, her counsel continued to argue the point, with the result that the mother copped an indemnity costs order against her, and her counsel has been referred by the court to regulatory authorities.

Rather than read my version of what happened, here is the extract from the judgment in Carpenter and Carpenter, with "drivel" and "butt plug"included, starting with Ground 9 of the appeal by the mother:

"Ground 9The interests of justice in this case cannot be seen to be supported
where the recordings of proceedings were edited and or amended
before final
transcription by the official transcribers.

We
are seriously troubled by the assertions made not only in this so-called ground
of appeal, but also in the written and oral submissions
of Ms Merkin.

The
first point to make is that it is not a proper ground of appeal. No appealable
error is alleged, and it should be struck out
as sought by both the father and
the ICL. We observe though that Ms Merkin continued to pursue this complaint
before us.

The
second and most concerning aspect is that the statements and submissions made by
Ms Merkin in relation to this issue appear to
have been made in breach of Rules
63 and/or 64 of the Barristers’ Conduct Rules of theBar Association of
Queensland.

Those
Rules are as follows:

63. A barrister must not allege any matter of
fact in:
(a) any court document settled by the barrister;
(b) any submission during any hearing;
(c) the course of an opening address; or
(d) the course of a closing address or submission on the evidence;
unless the barrister believes on reasonable grounds that the factual material
already available provides a proper basis to do so.

A
barrister must not allege any matter of fact amounting to criminality, fraud or
other serious misconduct against any person unless
the barrister believes on
reasonable grounds that:

(a) available material by which the
allegation could be supported provides a proper basis for it; and
(b) the client wishes the allegation to be made, after having been advised of
the seriousness of the allegation and of the possible
consequences for the
client and the case if it is not made out.

The
written submissions of Ms Merkin in support of this complaint are as
follows:

The Transcript is incomplete and absent of sections of the
proceedings before the court where the internal record of the transcript
demonstrates events not transcribed but nevertheless having been raised during
the trial. It is not open to counsel to edit or amend
the transcript. Neither
is it open for anyone to do so either: Kuhl v Zurich Financial Services
Australia Ltd[2011] HCA 11, at 72, per Heydon, Crennan, Bell JJ; and
indeed, had the transcript been different than the transcript provided by the
official
transcriber, it would constitute a serious offence as an officer of the
court. If the recordings have been edited or amended in
any way, is not open to
the judiciary or anyone on behalf of any judiciary to amend or edit the audio
recordings of the proceedings
before they are sent to the official
transcribers.
(Footnotes omitted)

It
is plain that in that submission the allegation is being made that, inter alia,
the trial judge may have amended or edited “the
audio recordings of the
proceedings before they are sent to the official transcribers.” It is
also a fair reading of the submission
that it is being alleged that the trial
judge may have in addition edited or amended the transcript.

In
the affidavit material comprising the further evidence sought to be adduced by
the mother, there is evidence that relates to this
issue. Both the
father’s counsel and the counsel for the ICL took no objection to this
court receiving that evidence, and
we are content to do so. Specifically, that
evidence is comprised in paragraphs 73 to 84 of the mother’s affidavit
filed on
6 September 2013, and in paragraphs 5 and 6 of her affidavit tendered
to this court on20 September 2013.

In
summary, following the obtaining of the transcript of the hearing for the
purposes of the appeal, the mother claimed that there
were three instances where
what was said in court did not appear in that transcript. In paragraph 75 of
her affidavit filed on 6
September 2013 the mother identifies those three
“data gaps” as follows:

...

Transcript
– Data gaps
There are three areas of transcript which I say are missing. These areas
are:
i. Appeal Book 6 – Day 1 of trial – pages 963 to 973
First sentence by his Honour before appearances announced, he said
“Your client’s affidavit is full of drivel” to
my barrister.
This material is missing from the first page of the transcript.

Appeal
Book 7 – Day 3 of the transcript – pages 1117-1121 line 5 1117 to
line 15.

Submissions of Ms Merkin to His Honour stated during this
period “I’m the expert”.

Ms Merkin held up a butt plug. His
Honour asked what it was. Ms Merkin said “it is commonly referred to as a
butt plug”.
His Honour told Ms Merkin she was not allowed to bring such
items into the court. It happened around P-171 but this record is missing
from
the transcript. The reason it was so obvious to me the material was missing is
that at the time Ms Merkin held up the butt
plug I clearly recall His Honour
raised his voice and started to shout angrily. He shouted at Ms Merkin
“You can’t bring
that into my Court”. The event described
above was referred to in Day 4, at P-350 from line 25 to line 15, P-351.

The
mother then deposes in paragraphs 76 and 77 to a “fourth piece of missing
data”. She said this:

It
very recently came to my attention after conversations with my father, [Mr X],
that there is a fourth piece of data is missing.
On or about 30 August my
father asked me words to the effect of “is the judge’s comment in
the transcript?” I
asked him which comment and he said words to the
effect the comment where the Judge stated “I will be the judge of whether
the children have been sexually abused and if you don’t like that then you
can appeal”.

I
checked the transcript for each of the 3 dates my father attended the trial but
could not find the comment he remembers the Judge
made. ...

Subsequently
the mother consulted an “audio recording specialist” about digital
court recording systems, and then she
attended at court and listened to the
audio of the hearing before his Honour. The mother recorded her
“findings” in
paragraph 80 of her affidavit as
follows:

I listened to sections of the audio in which I had
identified sections of data that were missing in the transcript and followed the
audio with the relevant Appeal Book containing the written transcript in front
of me. I was using a pair of i-phone earphones to
listen to the recording
rather than the old style earphones the subpoena room provided. In relation
to item 1 and item 2 of my concerns I could not ascertain any discrepancies
between the audio and the written transcript. What I did find was that,
with the headphone I used which are the latest i-phone technology, I could
audibly hear separate “channels”
of audio in separate ears. For
example I could hear the Judge’s channel in my left ear only and Ms
Merkin’s channel
in my right ear phone only.
(Our emphasis)

In
relation to the third piece of data allegedly missing, the only discrepancy the
mother could find was a rustling sound was not
recorded in the transcript. In
paragraphs 81 to 83 of her affidavit, the mother deposed to hearing on the audio
“a rustling
sound of ... thin plastic” whereas the bag in which she
brought the “butt plug” to court for the purposes of Ms
Merkin’s cross-examination of the police officer was a “thick, black
plastic bag” which when rustled sounded quite
different to the sound in
the relevant section of the audio. She also claims that when compared with the
written transcript, “[t]he
rustling of plastic is out of
place”.

Thus,
in summary, bearing in mind the mother could not find on the audio recording the
fourth piece of data allegedly missing, the
only difference between the audio
recording and the transcript is the absence of a rustling sound. However, we do
not consider that
to be of any significance or indeed supportive of the
allegations the mother makes.

As
a result, the mother then consulted another “Audio engineering
technician” about “how audio is constructed and
how possible it is
to make alterations to it.” The mother says that she was told that
“it is possible”, but she
subsequently ran out of time to again
listen to the audio to test what the engineer told her.

We
note the following in relation to this evidence:

The
“quality team” of the contractor, Auscript, checked the audio in
response to a complaint by the mother, and verified
that the transcript in
relation to the third alleged missing piece of data is “true to what was
said in court”.

In
relation to the first alleged “data gap”, we note that according to
the transcript, on 22 August 2012 his Honour commented
that much of the further
affidavit of the mother of 24 July 2012 “contains inadmissible
nonsense”, and subsequently on
that same day, his Honour said in relation
to certain affidavit material relied on by the mother, that “[i]t seems to
mostly
contain inadmissible drivel to me in the nature of a character reference
...”.

In
relation to the third alleged “data gap”, we note that the relevant
part of the cross-examination of the police officer
by Ms Merkin commenced on 27
August 2012 (at page 171). Then there is the cross-examination of the mother by
counsel for the ICL
on the next day (28 August 2012), where this topic is
pursued (at page 350). However, there is no discrepancy between the audio
recording and the transcript, (save and except of course the rustling sound
which we have found to be of no significance).

It
has not been established to us that anybody has amended or edited either the
transcript of this hearing or the audio of this hearing
before it has been
transcribed.

The
particular concern that we have about the conduct of Ms Merkin is that despite
the mother in effect no longer pursuing the claim
that the transcript had been
edited or amended, and limiting the claim in her evidence to an allegation in
relation to the audio
recording, her counsel has, as referred to above, pursued
both claims, and most troubling, has suggested that the trial judge may
have
been involved in this.

In
these circumstances we propose to have the Appeals Registrar forward these
reasons for judgment and the relevant part of the transcript
of the proceedings
before us to the Bar Association of Queensland for them to take whatever action
they consider appropriate."

"To Stephen,
Thank you for all your support on this special day. Bringing about awareness about Domestic Violence is so very important. Thank you for your choice to stand up against it.
Blessings,
Narelle".
Narelle Warcon, author of Blonde Roots

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.